1
Fair Work Act 2009
s.604—Appeal of decision
Metropolitan Fire and Emergency Services Board
v
Garth Duggan
(C2017/1570)
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER SAUNDERS MELBOURNE, 25 SEPTEMBER 2017
Appeal against decision [2017] FWC 1197 of Commissioner Ryan at Melbourne on 7 March
2017 in matter number U2016/14351.
Introduction and background
[1] The Metropolitan Fire and Emergency Services Board (MFB) has applied for
permission to appeal and appealed a decision of Commissioner Ryan issued on 7 March 20171
(Decision).
[2] The Decision concerned a jurisdictional objection raised by the MFB to Mr Garth
Duggan’s unfair dismissal application on the basis that he was not protected from unfair
dismissal because he had not completed a period of employment with the MFB of at least the
minimum employment period within the meaning of s.383 of the Fair Work Act 2009 (Cth)
(Act). The Commissioner found that Mr Duggan had completed the minimum employment
period. Accordingly, the Commissioner dismissed the MFB’s jurisdictional objection.
The Decision
[3] Mr Duggan commenced employment with the MFB as a recruit firefighter on 9
February 2016. In late April 2016, the MFB learned of conduct on the part of Mr Duggan
which occurred prior to his employment with the MFB.
[4] The MFB provided Mr Duggan with an opportunity to address its concerns in relation
to his prior conduct. On 8 May 2016, the MFB received Mr Duggan’s response. On 10 May
2016, the United Firefighters Union of Australia (UFU) formally notified the MFB of a
dispute (Dispute) in relation to Mr Duggan’s employment in accordance with the dispute
resolution procedure in the Metropolitan Fire and Emergency Services Board, United
Firefighters Union of Australia, Operational Staff Agreement 2010 (the Agreement).
1 [2017] FWC 1197
[2017] FWCFB 4878
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1197.htm
[2017] FWCFB 4878
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[5] By letter dated 24 May 2016, the MFB informed Mr Duggan of its decision to
terminate his employment. The relevant parts of that letter are in the following terms:
“…I confirm that MFB has decided to terminate your employment. In making the
decision to terminate your employment MFB has considered the material provided by
you in your email dated 8 May 2016. Your explanations and the further material
provided by you did not alleviate our concerns that you are not suitable to be an MFB
firefighter.
…
In accordance with clause 27.1.3 of the Metropolitan Fire and Emergency Services
Board, United Firefighters Union of Australia, Operational Staff Agreement 2010 (the
Agreement), the MFB will not implement this decision until the dispute between the
parties has been resolved. Please find attached Form F10 Application for the Fair
Work Commission (FWC) to deal with the dispute in accordance with Step 5 of the
dispute resolution procedure at clause 19 of the Agreement, which we intend to file
with the FWC today in the interests of resolving the dispute as soon as possible…”
[6] On 24 May 2016, the MFB also filed an application in the Fair Work Commission
(Commission) pursuant to s.739 of the Act for the Commission to deal with its Dispute with
Mr Duggan. The issue the subject of the Dispute was whether the MFB was restricted from
implementing a decision to terminate the employment of Mr Duggan by the operation of the
Agreement. Relevantly, clause 27 of the Agreement provides as follows:
“27. TERMINATION OF EMPLOYMENT
27.1. An employee’s employment may not be terminated unless:
27.1.1. the Employee Code of Conduct has been complied with in accordance with
clause 26.3;
27.1.2. the employee and the union have been notified that the employer intends to
terminate an employee’s employment; and
27.1.3. any dispute notified by the employee or the union has been resolved.”
[7] On 3 August 2016, Commissioner Wilson issued a decision2 in relation to the
application by the MFB to deal with its Dispute with Mr Duggan in accordance with clause 19
of the Agreement. The decision was the subject of an appeal to a Full Bench of the
Commission.
[8] On 10 November 2016, the Full Bench issued its decision,3 allowing the appeal and
quashing the decision and orders made at first instance. The Full Bench also determined the
Dispute by confirming Commissioner Wilson’s decision at first instance to the effect that
there had “not been a failure by the MFB to follow any process mandated by the Agreement
2 [2016] FWC 5028
3 [2016] FWCFB 8120
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb8120.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5028.htm
[2017] FWCFB 4878
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with respect to termination of Mr Duggan’s employment in respect to a change in the Police
Check Policy.”4
[9] After receiving a copy of the decision of the Full Bench of the Commission on 10
November 2016, the MFB sent a letter to Mr Duggan dated 10 November 2016:
“Dear Mr Duggan
Further to our letter of 24 May 2016 and in light of the decision of the Full Bench of
the Fair Work Commission published today, your employment will now terminate,
effective immediately.
In accordance with clauses 27.2.1 and 27.2.3, the MFB will pay you in lieu of one
week's notice.
You will be paid in respect any outstanding entitlements into the bank account in
which you ordinarily received your pay.
Yours sincerely”
[10] The Commissioner at first instance found that:
(a) a notice of dismissal for the purpose of s.383(a)(i) of the Act must also meet the
requirements of s.117 of the Act;5 and
(b) the letter dated 24 May 2016 did not meet the requirements of s.117(1) of the
Act.6
[11] The Commissioner went on to hold, in the alternative, that if a notice of dismissal for
the purpose of s.383(a)(i) of the Act did not have to meet the requirements of s.117(1) of the
Act, then at the very least the common law requirements for a valid notice of dismissal had to
be met. The Commissioner found that the MFB’s letter of 24 May 2016 did not meet those
requirements, including because the date of dismissal lacked sufficient certainty.7
[12] The MFB submits that the Commission erred in these conclusions.
Permission to appeal
[13] An appeal under s.604 of the Act is an appeal by way of rehearing and the
Commission’s powers on appeal are only exercisable if there is error on the part of the
primary decision maker.8 There is no right to appeal and an appeal may only be made with the
permission of the Commission.
4 Ibid at [64]
5 Decision at [33]
6 Decision at [37]
7 Decision at [47]-[48]
8 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17]
per Gleeson CJ, Gaudron and Hayne JJ
[2017] FWCFB 4878
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[14] Section 400 of the Act applies to this appeal. Section 400 provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.”
[15] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services
Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed)
characterised the test under s.400 of the Act as “a stringent one”.9 The task of assessing
whether the public interest test is met is a discretionary one involving a broad value
judgment.10 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission
identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters”11
[16] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.12 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.13
[17] We are satisfied that it is in the public interest grant permission to appeal in this
matter, for the following reasons:
(a) First, the interrelationship, if any, between the notice of termination
requirements set out in s.117 of the Act and the giving of a notice of dismissal in
accordance with s.383(a)(i) of the Act is an issue of importance and general
application. It has not previously been considered by a Full Bench of the
Commission; and
9 (2011) 192 FCR 78; 207 IR 177 at [43]
10 O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v
Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining
Services Pty Ltd v Lawler and others (2011) 192 FCR 78; 207 IR 177 at [44] -[46]
11 [2010] FWAFB 5343; (2010) 197 IR 266 at [27]
12 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]
13 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal &
Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28],
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New
South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office
[2014] FWCFB 1663; (2014) 241 IR 177 at [28]
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1663.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb10089.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5343.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
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(b) Secondly, for the reasons identified below, the Decision is, in part, erroneous
and should be corrected.
Consideration
Interrelationship between s.117 and s.383(a)(i) of the Act
[18] Section 117 of the Act relevantly provides as follows:
“117 Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee’s employment unless the employer
has given the employee written notice of the day of the termination (which cannot be
before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how
a notice may be given. In particular, the notice may be given to an employee
by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.
Amount of notice or payment in lieu of notice
(2) The employer must not terminate the employee’s employment unless:
(a) the time between giving the notice and the day of the termination is at least
the period (the minimum period of notice) worked out under subsection (3); or
(c) the employer has paid to the employee (or to another person on the employee’s behalf)
payment in lieu of notice of at least the amount the employer would have been liable
to pay to the employee (or to another person on the employee’s behalf) at the full rate
of pay for the hours the employee would have worked had the employment continued
until the end of the minimum period of notice.”
[19] Section 117 is contained in Part 2–2 of the Act; it forms part of the National
Employment Standards (NES). Section 117 of the Act requires written notice of termination
to be given and sets out the amount of notice that must be given. A failure to provide the
minimum period of notice or payment in lieu thereof as required by s.117 of the Act
constitutes a breach of the NES and exposes the employer to the imposition of a civil
penalty.14
14 Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221; 247 IR 74 at [213]-[214] per White J
[2017] FWCFB 4878
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[20] Section 383 is contained in Part 3–2 of the Act; it, together with s.382, defines which
employees are protected from unfair dismissal. Sections 382 and 383 are relevantly in the
following terms:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with
his or her employer of at least the minimum employment period; and
…
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of
the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or”
[21] The word “dismissed” is defined in s.386 of the Act. It includes a person’s
employment being “terminated on the employer’s initiative”.15 The expression “termination
on the employer’s initiative” is concerned with the termination of the employment
relationship, not the employment contract.16 The employment contract and the employment
relationship are related but distinct.17
[22] A notice, whether oral or in writing, which is ineffective to terminate the employment
contract may nonetheless be effective to terminate the employment relationship.18 For
example, a wrongful dismissal of an employee by an employer, or a unilateral resignation by
an employee other than in accordance with the terms of the contract, is effective to bring the
employment relationship to an end, but it does not automatically discharge the contract of
employment.19
[23] The present case gives rise to a related, but separate question. In particular, is a notice
of termination which does not comply with s.117 of the Act effective to bring about the
15 Section 386(1)(a) of the Act
16 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 at 205; Explanatory Memorandum to the Fair Work Bill 2009
at clause [1528]; Siagian v Sanel (1994) 122 ALR 333 at 350-1; Mahoney v White [2016] FCAFC 160 at [23]; Searle v
Moly Mines Ltd (2008) 174 IR 21 at [22]-[23]; Ayub v NSW Trains (Ayub) [2016] FWCFB 5500 at [24]
17 Visscher v Giudice (2009) 239 CLR 361 (Visscher) at [53]
18 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 (Automatic Fire Sprinklers) at 454, 468; Byrne v
Australian Airlines Limited (1995) 185 CLR 410 (Byrne)
19 Automatic Fire Sprinklers per Latham CJ at 451, and per Dixon J at 466 & 469: Byrne at 427, 428 per Brennan CJ,
Dawson and Toohey JJ; Visscher at [53]; Purcell v Tellett Prebon (Australia) Pty Ltd [2010] NSWCA 150 at [19]-[20];
D’Souza v Halas [2014] FWC 5864 at [32]-[34]
[2017] FWCFB 4878
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termination of the employment relationship and can such a notice constitute “notice of the
dismissal” within the meaning of s.383(a)(i) of the Act?
[24] The High Court has previously considered, in the employment context, whether the
fact that a statute prohibits the doing of an act under penalty shows that the act cannot be
done. Automatic Fire Sprinklers involved consideration of a war-time regulation.20 Regulation
14(1) of the National Security (Man Power) Regulations provided that an employer carrying
on a protected undertaking shall not, except with the permission in writing of the Director-
General of Man Power or a person authorised by him, terminate the employment in the
undertaking of any person employed therein. Regulation 14(2) imposed a reciprocal
obligation on persons employed in a protected undertaking, namely, they could not, without
obtaining a similar permission, change or terminate their employment. Justices Rich, Dixon,
McTiernan and Williams (Latham CJ and Starke J dissenting) held that, by reason of
Regulation 14, a purported dismissal of an employee in a protected undertaking, without
obtaining the requisite permission, was ineffectual in law to terminate the employment
relationship. Chief Justice Latham made the following remarks (at 454-5) in his dissenting
judgment:
“An employer terminates the employment of a servant when he dismisses him, though,
as I say hereafter, such a dismissal does not put an end to the contract between the
parties. An argument that a dismissal because wrongful was a nullity was raised and
rejected in both Williamson’s Case and Lucy’s Case.
The meaning of the regulation, in my opinion, is that the employment cannot lawfully
be terminated. If it is terminated unlawfully, certain criminal and civil consequences
ensue.”
[25] This aspect of the majority’s judgment in Automatic Fire Sprinklers is no longer good
law. In Byrne, the majority (Brennan CJ, Dawson and Toohey JJ) preferred (at 428) the
reasoning of the minority (Latham CJ and Starke J) on this point:21
“There is no reason to doubt that in the present case the dismissal of the appellants by
the respondent rightly or wrongly put an end to the employment relationship. In
Automatic Fire Sprinklers Pty Ltd v Watson the majority felt constrained by authority
to say that the regulation in question prevented that from happening. We are bound to
say that we prefer the reasoning of the minority to the contrary on the point. As
Latham CJ said: ‘the fact that a statute prohibits the doing of an act under a penalty
does not show that the act cannot be done’. Indeed, as Mason J said in Yango Pastoral
Company Pty Ltd v First Chicago Australia Ltd:
‘There is much to be said for the view that once a statutory penalty has been
provided for an offence the rule [role?] of the common law in determining the
legal consequences of commission of the offence is thereby diminished.’”
[26] Byrne concerned two airport baggage handlers who were dismissed from their
employment by an airline operator for pilfering. They alleged that their dismissals were in
breach of an award on the ground that, contrary to the award, they were harsh, unjust or
20 Byrne at 426
21 See, too, Visscher at [53]
[2017] FWCFB 4878
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unreasonable. As a result, they contended that the purported termination of their employment
was illegal and void.
[27] Justices Brennan, Dawson and Toohey ultimately held in Byrne (at 428) that:
“Short of a law deeming an employment relationship to exist when it does not, the
question whether or not it continues to exist seems to us to be a question of fact.”22
[28] In addition to Automatic Fire Sprinklers and Byrne, it is necessary for us to say
something about Ayub.23 In that case, a Full Bench of the Commission considered the
relationship between the notice requirements in s.117(1) of the Act and the issue of when a
dismissal takes effect for the purpose of s.394(2)(a) of the Act. The Full Bench in Ayub held
(at [39]) that:
“At least in relation to dismissals on notice, support for the conclusion that s.394(2)(a)
is to be read as requiring the communication of a dismissal to the employee for it to
take effect is derived from s.117(1)…”
[29] The Full Bench in Ayub did not consider the relationship, if any, between the notice
requirements in s.117(1) and a notice of dismissal in accordance with s.383(a)(i) of the Act.
The Full Bench did, however, draw on common law principles to determine when a dismissal
with notice would take effect.24 There is no suggestion in the reasons of the Full Bench in
Ayub that a dismissal with notice would not take effect unless the notice, or payment in lieu
thereof, complied with s.117 of the Act.25
[30] Turning now to the particular features of the relevant provisions of the Act, s.383(a)(i)
of the Act does not make any reference to s.117 of the Act, nor does it state that the notice has
to be in writing or inform the recipient of the notice “of the day of the termination” (as
required by s.117). These matters tell against s.383(a)(i) being read and construed as
incorporating the requirements for notice provided for by s.117.
[31] Also telling is that the purpose of s.117 of the Act is quite different to that of s.383(a)
of the Act. The purpose of s.117 is to ensure that employees are given clear and adequate
notice, or payment in lieu thereof, of the termination of their employment by their employer.
In contrast, we consider the policy and purpose of ss.382(a) and 383(a)(i) is to provide an
employer with a period of time to assess a new employee and for the employee to know by
the end of the six or 12 month period (depending on whether the employer is a small business
employer) whether, on the one hand, their employment will be ongoing and they will be
protected from unfair dismissal or, on the other hand, their employment is to be terminated
and when such termination will occur. The provisions enable an employer to decide whether
or not to dismiss an employee during their minimum employment period without the risk of
being subjected to an unfair dismissal claim.26 Equally, if an employee is not dismissed or
given notice of their dismissal during the minimum employment period, the employee knows
that they will be afforded the protection of the unfair dismissal provisions of the Act.
22 Byrne at 428
23 [2016] FWCFB 5500
24 Ayub at [49]
25 Ibid
26 Explanatory Memorandum to the Fair Work Bill 2009 at clause [1512]
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[32] In summary, it is clear in our view that if an employer terminates the employment of
an employee without giving notice, or payment in lieu thereof, in accordance with an
obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the
Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee
will have one or more causes of action available to him or her under the contract, award,
enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful
or wrongful dismissal does not invalidate or render void the termination of the employment
relationship. Whether the employment relationship has been terminated is a question of fact.
[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may
be effective to bring about the termination of the employment relationship and may constitute
“notice of the dismissal” within the meaning of s.383(a)(i) of the Act. Construing the Act in
this way is consistent with the purpose of the relevant provisions, as set out above.
[34] We therefore are persuaded that the Commissioner was wrong to conclude that a
notice of dismissal for the purpose of s.383(a)(i) of the Act must also meet the requirements
of s.117 of the Act.
Requirements of notice of dismissal under s.383(a)(i) of the Act
[35] The MFB submits that the “notice of the dismissal” required by s.383(a)(i) of the Act
is notice in the ordinary sense of the word, meaning “information, intelligence, warning” that
the employee is to be dismissed.
[36] The MFB contends that s.383(a)(i) of the Act does not require that a person be given
the required notice to effect the termination of a contract of employment at common law.
Such an approach, so the MFB submits, is not required by the language of the legislation and
could lead to perverse outcomes. As to perverse outcomes, the MFB gives an example of a
contract of employment requiring that during a six-month qualifying period an employee be
given two weeks’ notice of termination (as opposed to one week’s notice under s.117 of the
Act). If during the six-month qualifying period, the employer provided one week’s notice of
the dismissal in writing in accordance with s.117, that employee would not have been
provided with adequate notice at common law under their contract of employment. Despite
complying with s.117 of the Act, the MFB contends that if s.383(a)(i) of the Act was read so
as to require a person to be given notice necessary to effect the termination of a contract of
employment at common law, that would lead to the conclusion that the person had not been
given “notice of the dismissal” as required by s.383(a)(i) of the Act. Such an outcome, the
MFB contends, would be wholly contrary to the intention of the provision.
[37] For reasons earlier explained, the “notice” required by s.383(a)(i) of the Act is of the
termination of the employment relationship, not the employment contract. Accordingly, we do
not accept that s.383(a)(i) of the Act requires that a person be given notice in accordance with
their contract of employment.
[38] What, then, is required by the expression “notice of the dismissal” in accordance with
s.383(a)(i) of the Act? The purpose of s.383(a)(i) of the Act is relevant to the proper
construction of this expression. We have set out the purpose of the provision in paragraph
[31] above. It seems to us that part of that purpose, from the perspective of both the employer
[2017] FWCFB 4878
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and the employee, is to provide certainty to both parties to the employment relationship as to
whether it will be ongoing or, if not, when the relationship will come to an end.
[39] Interpreting the expression “notice of the dismissal”, as contended for by the MFB, to
mean “information, intelligence, warning” that the employee is to be dismissed would fulfil
the function of providing certainty to both parties to the employment relationship as to
whether it is to be ongoing, but would not, in the event of a decision by the employer to bring
the relationship to an end at an undefined time, provide any certainty as to when the
relationship would cease.
[40] In the context of s.383(a)(i) of the Act, we accept that “notice” should be given its
ordinary meaning of “information”. But it is important to construe “notice” as part of the
composite expression “notice of the dismissal” in s.383(a)(i) of the Act. The MFB’s
construction of the expression “notice of the dismissal” amounts to “information, intelligence,
warning” of the employer’s decision to dismiss the employee. However, the dismissal is an
event, not merely a decision; it occurs when the employment relationship comes to an end.
Accordingly, we consider that “notice of the dismissal” in accordance with s.383(a)(i) of the
Act must inform the employee of the time when the employment relationship will come to an
end, or at least make that time ascertainable. Such a construction is consistent with the
purpose earlier identified.
[41] Furthermore, for the reasons given by the Full Bench in Ayub, we agree it is
appropriate to draw on the common law principles identified in that decision to determine
whether an employee has been given notice of their dismissal under the Act. To be effective at
common law, a notice of termination of a contract of employment must specify a time when
termination is to take effect, or that time must be ascertainable.27
[42] Accordingly, we agree with the Commissioner’s conclusion that a “notice of the
dismissal” in accordance with s.383(a)(i) of the Act must either specify a time when the
termination is to take effect, or that time must be ascertainable.28
[43] The MFB contends that the notice given to Mr Duggan on 24 May 2016 was
expressed with sufficient certainty and clarity to amount to common law notice. It submits
that the letter of 24 May 2016 set out an ascertainable time when the termination was to take
effect. In particular, the MFB submits that, from 24 May 2016, Mr Duggan was on notice that
he would be dismissed when the Dispute was resolved.
[44] We do not accept that the MFB’s letter to Mr Duggan dated 24 May 2016 specified a
time when the termination was to take effect, or made that time ascertainable. The letter
informed Mr Duggan of the MFB’s decision to dismiss him, but stated that the MFB would
not implement its decision to dismiss him “until the dispute between the parties has been
resolved”.
[45] On receipt of the letter on 24 May 2016, Mr Duggan could not have ascertained when
the Dispute would be resolved. The MFB’s application for the Commission to deal with the
Dispute was only filed in the Commission on the same day as he received the letter (24 May
2016). At that time Mr Duggan could not have known, or ascertained, how long it may take
27 Ayub at [17], applying Fardell v Coates Hite Operations Pty Ltd (2010) 201 IR 64 (Fardell) at [82]
28 Decision at [41]
[2017] FWCFB 4878
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for the Dispute to be the subject of conciliation and potentially arbitration by the Commission.
The outcome of the Dispute may have been a determination that the MFB could not dismiss
Mr Duggan, or that it could not dismiss him until some further step had been taken.29
[46] Further, when used in conjunction with a negative, the ordinary meaning of “until” is
“before”.30 It follows that the ordinary meaning of the expression “the MFB will not
implement this decision until the dispute between the parties has been resolved” is that the
MFB would not implement its decision to dismiss Mr Duggan before the Dispute was
resolved. We consider that a reasonable person in the position of Mr Duggan with knowledge
of the background dealings between the parties would have construed the letter in this way.31
We therefore do not accept the MFB’s submission that, from 24 May 2016, Mr Duggan was
on notice that he would be dismissed “when the Dispute was resolved” or “upon the
resolution of the Dispute”. The 24 May 2016 letter notified Mr Duggan that he would not be
dismissed before resolution of the Dispute, but did not inform him whether the dismissal
would take effect on the day the Dispute was finally resolved or at some later time.
[47] Accordingly, we agree with the Commissioner’s conclusion that the letter of 24 May
2016 did not constitute a “notice of the dismissal” within the meaning of s.383(a)(i) of the
Act.32
Section 194(c) of the Act
[48] Finally, the MFB contends that if the Commissioner’s construction of the 24 May
2016 letter is correct, the effect of the Decision is that employees of the MFB covered by the
Agreement are likely to have an entitlement to access the unfair dismissal regime even when
the MFB provides them with a notice of dismissal during the first six months of their
employment. That is because, so the MFB submits, clause 27 of the Agreement requires the
MFB to notify the UFU that the MFB intends to terminate an employee’s employment before
doing so. Once the UFU is notified that the MFB intends to terminate the employment of an
employee who has not completed six months’ employment, the UFU can by lodging a dispute
effectively put the termination process on hold. The MFB submits that such a construction of
the 24 May 2016 letter would give clause 27 of the Agreement an operation contrary to
s.194(c) of the Act and therefore should be avoided.
[49] Section 194(c) of the Act provides that a term of an enterprise agreement is an
unlawful term if it “confers an entitlement or remedy in relation to the termination of the
employee’s employment that is unfair (however described) before the employee has
completed” the minimum employment period.
[50] Clause 27 of the Agreement is clearly the reason why the MFB gave notice to Mr
Duggan in the terms that it did on 24 May 2016. However, the reason why the notice was
drafted in that way and whether clause 27 is an unlawful term within the meaning of s.194(c)
of the Act are not relevant to the question of whether the notice actually sent to Mr Duggan on
29 See, for example, the outcome of the decision at first instance ([2016] FWC 5028 at [128]) which was quashed on appeal
([2016] FWCFB 8120)
30 Macquarie Dictionary, Revised Third Edition: “until … 2. (with negatives) before: he did not come until the meeting was
half over”
31 Fardell at [82]
32 Decision at [49]
[2017] FWCFB 4878
12
24 May 2016 constituted “notice of the dismissal” to Mr Duggan within the meaning of
s.383(a)(i) of the Act. It did not. Accordingly, we reject the MFB’s arguments in relation to
s.194(c) of the Act.
Conclusion
[51] For the reasons set out above:
(a) permission to appeal is granted;
(b) we uphold the appeal so far as it concerns the Commissioner’s finding that a
notice of dismissal for the purpose of s.383(a)(i) of the Act must also meet the
requirements of s.117 of the Act;
(c) we confirm the Commissioner’s Decision to dismiss the MFB’s jurisdictional
objection to Mr Duggan’s unfair dismissal application on the basis that he was
not protected from unfair dismissal because he had not completed a period of
employment with the MFB of at least the minimum employment period within
the meaning of s.383 of the Act; and
(d) the appeal is otherwise dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Bourke QC for the appellant.
Mr D Langmead of Counsel for the respondent.
Hearing details:
2017.
Melbourne:
September 5.
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